Belinda Schwehr explains how immigration, social care and human rights law interact to determine care entitlements for people from abroad

By Belinda Schwehr

These questions have been raised with Belinda through her legal training sessions and webinars.

Understanding the law

Does everyone in a local authority need to understand this area of law?

Anyone undertaking an assessment must be suitably trained and competent to carry out such an assessment; so anyone with an immigration status must be dealt with by staff with appropriate knowledge and skills (as required by regulation 5 of the Care and Support (Assessment) Regulations 2014), so every council needs at least one such person!

Some general knowledge is needed by everyone, however; the following services are not classed as public funds and therefore adults subject to immigration control may be able to access any of them and can’t just be turned away: adult social services care and support, NHS treatment, student grants and loans and legal aid.

Independent Care Act advocacy is not something that cannot be provided to someone with a migrant status, as it doesn’t count as care or assistance; the 2015 R(SG) v Haringey judgment could not have found that a failure to provide an asylum seeker with advocacy rendered her assessment invalid, if the law were otherwise. The same is true for information and advice, so staff providing information and advice should be the most knowledgeable, really, as so much depends on proper analysis of the person’s status.

However, commissioned prevention services (as opposed to signposting to other sources of help in order to prevent or reduce need) are restricted for people who are subject to immigration control and have no recourse to public funds under section 115 of the Immigration and Asylum Act 1999 and those who are ineligible for support or assistance under section 54/schedule 3 of the National, Immigration and Asylum Act 2002, however. They can only be provided for those whose needs do not arise solely from destitution, or on human rights or EU treaty protection grounds (how these exceptions apply is set out below), so front desk staff need to be able to take a competent legally aware pre-assessment screening decision about that question.

Restrictions on support

What are the basic two statutory restrictions on supporting migrants through the Care Act?

The first group covers people who are not nationals of an European Economic Area (EEA) state who:

require leave to enter or remain in the UK but do not have it;

have leave to enter or remain subject to a condition that they have no recourse to public funds;

have leave to enter or remain subject to their sponsor agreeing to be responsible for their maintenance and accommodation;

have leave to enter or remain only on the basis that they are going through certain forms of appeal.

The second group covers people who:

have refugee status granted by a non-UK EEA country and any of their dependents;

are non-UK EEA nationals and any dependents;

are failed asylum seekers who have failed to comply with removal directions;

are unlawfully present in the UK but are not asylum seekers;

are failed asylum seekers with family who has not taken reasonable steps to leave the UK voluntarily.

It is possible for non-EEA nationals to be in both categories, at the same time (eg an illegal overstayer who has not made any human rights-based claim to stay) or sequentially, after they have taken certain steps to regularise their status.

Section 115 people have to get over the restrictions set by section 21 of the Care Act, and that means access to help is dependent on showing that their care and support needs are not solely on account of destitution (no money, no work rights, no benefits). If they have care and support needs related to physical or mental problems, that is sufficient to amount to more than merely destitution, and then there is no limitation to potential eligibility under the Care Act assuming they meet eligibility criteria.

If someone is one of the types of migrants excluded from support or assistance under section 54/schedule 3 of the National Immigration and Asylum Act, they will have to prove that their human rights or EU treaty rights are engaged and severely impacted upon, in the absence of help, if they are to obtain support through social services.

Regardless of one’s status, getting help such as care or financial assistance still generally turns on being eligible under the Care Act. If you are not eligible you are not owed a duty. If you are not owed a duty, you might still be provided with something under councils’ power to meet care and support needs under section 19 of the Care Act, but only if you have got at least somecare or support needs – not purely health, medical, nursing or pure housing needs.

Actually getting accommodation as the means by which one’s needs will be met, under the Care Act, will only ever happen when the eligible person has a need which would not be able feasibly to be met without the provision of accommodation. Under section 1 of the Localism Act 2011 – councils’ power of general competence to do anything an individual generally may do – shelter might be provided on a less stringent basis, wherever the issue is avoiding a breach of human rights or EU treaty rights.

The Localism Act has been found to offer a last ditch ‘duty’ in terms of avoiding a breach of human rights, for helping people even if they are excluded from adult social care, and would not even be eligible or able to point to needs that could count as Care Act type needs for care and support.

Mental health aftercare rights

Are people who have been compulsorily sectioned and entitled to aftercare under section 117 of the Mental Health Act 1983 caught by these restrictions?

Free section 117 aftercare services are not subject to any immigration exclusions, so nationality and immigration status are not factors that affect whether a person actually receives aftercare under section 117.

However, for a discharged patient who simply requires accommodation, but not in the context of the purpose of section 117 services, (that is, for keeping them from deteriorating mentally), accommodation will not be provided within section 117, but through the Care Act, in support of the section 117 plan.

This means that where a section 117 migrant with person subject to immigration control status, under the Immigration and Asylum Act, or section 54/schedule 3 status under the Nationality Immigration and Asylum Act, is assessed as not requiring supported accommodation for the purpose of reducing the likelihood of their readmission to hospital, then all the law above has to be applied. This includes the question of whether their needs arise solely from destitution, whether they need accommodation-dependent provision, and if they fall under any of the excluded groups set out in schedule 3 of the Nationality Immigration and Asylum Act, in which case a human rights assessment will also be required to establish whether such assistance canstill be provided, including fall-back on the Localism Act in line with the case of R (GS) v London Borough of Camden [2016] (the Camden case), explained below.

Whether to assess

Does the section 54/schedule 3 prohibition under the Nationality Immigration and Asylum Act mean that Care Act assessment need not even be done?

Case law prior to the Care Act (R(N) v Coventry City Council [2008]) says one can short-circuit the workload by doing a human rights assessment first and proceeding to a social care assessment only if human rights justify disapplying the section 54/schedule 3 prohibition, as set out in paragraph 3 of schedule 3 of the 2002 Act. In the Coventry case, the judge said: “If it is shown that paragraph 3 of Schedule 3 of the 2002 Act applies, and assistance is not needed to avoid a breach of the Convention, the local authority does not need to go on to consider the potential application of section 21 [of the National Assistance Act 1948].”

But to my mind, especially in light of the Camden case, the better-informed answer is that there is no point in not doing the Care Act assessment. This is because of the human rights assessment that has to be done for deciding whether one should use not just the Care Act but alternatively the Localism Act – to which the extent of the person’s needs, and eligibility or use of the power under section 19 of the Care Act (in terms of the criteria, or even the type of the needs), will clearly be relevant.

Others may say that if in doing the human rights assessment, the conclusion is that the situation is simply not desperate enough to constitute a human rights/EU treaty breach, due to its lack of severity, it would be okay not to do the Care Act assessment. But the Camden case stops that being the end of the matter, on my reading of it (see below).

And the point is this: if the Care Act is to be used, rather than the Localism Act, it might affect which budget the help should come out of. Local authorities should not expect adult social care to pay for that which is required only under the Localism Act, it seems to me. This is because the latter is a corporate council power, and in this scenario – where the person isn’t eligible for help under the Care Act’s duties to meet needs, under sections 18 or 20, or even the section 19 power – it is a provision with no particular connection to social services.

Urgent needs

Dealing with urgent needs

Section 19 of the Care Act provides local authorities with a power to meet an adult’s needs for care and support which appear to it to be urgent (regardless of whether the adult is ordinarily resident in its area) before a needs assessment or determination of whether the eligibility criteria are met have been carried out.

For people subject to immigration control under section 115 of the Immigration and Asylum Act, use of section 19 Care Act powers to help in advance of assessment can only be used for anyone with at least some sign of needs for care and support, ie those who are clearly not solely destitute, even if they are not likely to be seen as in need of accommodation-dependent support. Section 19(1) also provides local authorities with a power to meet an adult’s needs for care and support even if the person is merely “present in its area but of no settled residence (my emphasis)”. Section 19 is of no use if the person has purely housing needs or needs for health care, but since the context of this paragraph is that the decision is taken pending enquiries, it is not likely that this would have yet been analysed or decided.

The Localism Act should be considered and used for those who are likely to be only and solely destitute, without any appearance of care and support needs, pending enquiries.

For people prohibited from receiving Care Act support under section 54/schedule 3 of the Nationality Immigration and Asylum Act, the human rights/EU treaty rights exceptions justify use of section 19 of the Care Act to avoid an imminent breach of human rights or EU treaty rights.

Entitlements for European people

What is the position for European people?

EEA nationals don’t need leave to enter and are able to come in subject to a passport or identity card check. They are not subject to immigration control, at all, for the first three months. They are not ever able to be defined as ‘persons subject to immigration control’ under Section 115(9) of the Immigration and Asylum Act and are not even positively excluded from entitlement to welfare benefits. However, in order to be eligible for public funds such as housing help and benefits, EEA nationals must have a ‘right to reside’ and satisfy the ‘habitual residence test’. Hence they can struggle, on arrival.

An EEA national who will be in the UK for more than three months will have a right to reside for as long as they remain a qualified person. A qualified person is an EEA national who is in the UK and exercising an EU treaty right as any of the following: job seeker, worker, self-employed, self-sufficient or student. If clearly not exercising EU treaty rights, they do need leave to remain, but are not a priority for removal by the Home Office. If a person is working or has recently been working and is now looking for further work or is unable to work due to illness, they may still be entitled to these benefits.

Adult EEA nationals (and refugees with status in another EEA state) are caught by the restrictions to local authority support under section 54/schedule 3 of the Nationality Immigration and Asylum Act. That means that they can’t get care services under the Care Act unless use of those powers is the only way to deliver their human or their EU treaty rights (see below). Local authorities have the power to purchase tickets to countries of origin for EEA nationals.

Human rights assessments

What does a human rights assessment have to consider?

Whether in the context of returning an EU national home, or what a person’s condition would be here, without support, articles 3 (the prohibition of torture or inhuman or degrading treatment or punishment), 5 (the right to liberty and security), 6 (the right to a fair trial) and 8 (the right to respect for private and family life) of the European Convention on Human Rights have to be considered.

People who face an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life, and have no one to help them, are in the strongest position. Age, gender, mental and physical health and conditions, any facilities or sources of support available to the applicant, the weather and time of year and the period for which the applicant has already suffered or is likely to continue to suffer privation, will all be relevant. As Baroness Hale said in R v Secretary of State for the Home Office ex parte Adam (FC) etc [2005]: “It might be possible to endure rooflessness for some time without degradation if one had enough to eat and somewhere to wash oneself and one’s clothing. It might be possible to endure cashlessness for some time if one had a roof and basic meals and hygiene facilities provided. But to have to endure the indefinite prospect of both, unless one is in a place where it is both possible and legal to live off the land, is in today’s society both inhuman and degrading (my emphases).”

The human rights assessment must determine whether the adult can, practically and legally, return to their country of origin; whether return would cause a breach of the adult’s human rights; whether the presenting needs prevent them from fending for themselves; the particular limitations placed upon their access to statutory assistance (from the Department for Work and Pensions, local authority and NHS), housing and employment; their ability to access basic necessities, eg food, shelter and clothing, including through charitable sources and sources outside the UK where appropriate; their social or familial situation; whether the proposed action on the part of the council is within the authority’s powers (including under the Localism Act) and whether it is proportionate and reasonable in the circumstances.

Recent case law

The judge in this case found a way of enabling/requiring councils to consider the Localism Act as a means of meeting the needs of people who were neither unlawfully regarded as ineligible or indeed without any Care Act care and support needs at all, in order to avoid a breach of human rights.

Complying with this approach will involve some senior management strategic thinking as to how to build this into the processes being applied to migrants’ requests for adult social care.

The judge also found that even with the personal independence payment, the person would not have enough money to obtain suitable accommodation and that leaving the person without it would be sufficient to engage and contravene article 3 rights (the prohibition on inhuman or degrading treatment). This was because of the medical evidence about the lack of accommodation exacerbating her mental condition and taking into account her potential social isolation, her physical disabilities, pain, and the physical difficulties that she encountered. The judge said: “In my judgement, this is ‘serious suffering’ and the Claimant gets over the high threshold in Limbuela and that treatment of her would be inhuman and degrading. In the absence of evidence of available and affordable accommodation, my view is that it would be an imminent breach if the current accommodation were to be withdrawn (my emphasis).”

Carers and immigration

Does a carer’s immigration status mean that they can’t get Care Act support?

Previously, the immigration status of a carer did not affect the carer’s eligibility to receive support from the local authority. But now, direct support under the Care Act is subject to the exclusion from support we’ve already considered, and for those with section 54/schedule 3 National Immigration and Asylum Act status, a human rights assessment would need to be carried to establish whether a carer’s needs for support can be met when the exclusion applies.

In respect of a person subject to immigration control, the section 21 of the Care Act extra hurdle (that their needs must not arise solely from destitution) does not apply to carers, only to adults with needs for ‘care and support’. So it is not ever relevant to say that being only a person subject to immigration control prevents a local authority from supporting a carer.

But local authorities are explicitly not permitted to provide care and support to an adult, who is subject to immigration control, in order to meet their carer’s needs for support when the adult’s needs for care and support have arisen solely due to destitution or the physical effects of destitution – section 21(4).

Logically, this means that if the adult subject to immigration control being cared for is destitute plus (ie they have additional physical or mental health needs or disabilities), and being helped, there is no prohibition on helping their carer at all. If the adult subject to immigration control being cared for is merely destitute, there is no problem with providing the carer with other forms of support, as long as it isn’t direct support for the cared-for person.

But if the carer is a section 54/schedule 3 excluded person, then they cannot be given support under the Care Act unless their human or EU treaty rights would depend on it and they are otherwise eligible, or the council decides to use its section 19 power, despite the carer not being eligible for support. The Localism Act would be there as a residual means of providing support to a section 54/schedule 3 carer, in line with the Camden case.

The Home Office and Department of Health have advised assessing any carer who is in the UK unlawfully as not being in a position to continue to support the adult, ie not able to be seen as able, even if willing, to meet the needs, for the purposes of the assessment of the adult. Wherever a refusal to provide support to a carer leads to the withdrawal of support from an adult, migrant or otherwise, the adult’s needs will have to be reassessed.

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